Are there circumstances when discrimination is permitted?

Section 351(1) of the Fair Work Act 2009 (Cth) provides protection against adverse action based on an employee or prospective employee because of their race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

However, there are three exceptions:

1. The adverse action will not breach s 351(1) if it is permitted under any anti-discrimination laws;
2. The adverse action was taken because of the inherent requirements of the particular position concerned are not being met;
3. The adverse action is taken against a staff member of a religious institution, taken in good faith and to avoid injury to the religious susceptibilities of members of that religion.

Exception 1: Permitted under Anti-Discrimination Laws

Under certain anti-discrimination laws, your employer may be permitted to take special measures for the purpose of promoting or realising substantive equality for members of a group with a particular attribute. The special measure must be taken honestly, be reasonably likely to achieve that purpose, and be proportionate and justified. The special measure does not equate to discrimination against a person who does not possess the required attribute.

For instance, AusNet Services Ltd was able to specifically target female students for 8 paid scholarship in the discipline of Power Engineering between 2016 and 2018 to meet the underrepresentation of females.  The measure was taken in good faith and was reasonably likely to achieve the purpose of redressing the underrepresentation of women in the Power Engineering discipline. It was not considered discrimination against the male students who are ineligible for the scholarship.

Exception 2: Inherent Requirements of the Position

This exception applies to the essential features of the position as opposed to extraneous tasks. One method of determining if a task is inherent is the position would essentially be the same if the task is removed from the position.

In Keys v Department of Disability, Housing & Community Services [2011] FMCA 35, Mr Keys was dismissed after consistently being away from work for long periods of time due to a mental illness. It was an inherent requirement that Mr Keys be present at work as Mr Key’s was required to be present at residence’s where supervision of persons with disabilities is required as well as overnight stays at disability houses. The court found that Mr Keys was unable to fulfil the inherent requirements of his position as he was unable to be physically present and the tasks were of such a nature that if the requirements to be present at work were removed the position would not be the same.

In contrast, Ms Wilkie in Wilkie v National Storage Operations [2013] FCCA 1056 was transferred after needing to take a number of days off due to personal and medical reasons. National Storage Operations argued that it was an inherent requirement of the position that the employee was present during rostered hours as the location was staffed with one full time and one part time employee. The court found that while it was an inherent requirement for an employee to attend work, Ms Wilkie was entitled to access annual, personal and carer’s leave by statute and the employment contract, and as such it cannot be an inherent requirement that the person not access their entitlements.

It is clear that what is an inherent requirement will depend on the way in which the employer has arranged its business. An employer cannot create inherent requirements by stipulating that the task is an inherent requirement. The matter is to be determined according to common sense and objective facts.

Exception 3: Religious Institutions

The exception preserves the capacity of a religious institution, which it otherwise would have lost, to take adverse action against an employee based on the operational requirements of the undertaking. The reason must be connected with the employee’s capacity or conduct and not merely by the values of the religion.

For instance, in Kerry Anne Hozack v The Church of Jesus Christ of Latter-Day Saints [1997] FCA 1300, it was a requirement on Ms Hozack remain “temple worthy” during her employment as a church receptionist. Ms Hozack became “disfellowshipped” from the Church for 12 months following a sexual relationship while she was separated but not divorced from her husband. The Church terminated her employment as they were concerned about the potential injury to other Church members

The Church argued that Ms Hozack lacked the capacity to promote the values and tenets while Ms Hozack was “disfellowshipped”. However, Madgwick J found that as a receptionist, Ms Hozack was not in a position of leadership within the Church, so there was no operational requirement that Ms Hozack promote the values and tenets of the Church, and there was no issue as to her capacity to perform the role of a receptionist. However, Madgwick J found that the Church had terminated her employment in good faith as there was a concern about injuries to the members of the Church. Any claimed injuries did not require to be proven, but it was enough that the Church had acted honestly.

Ultimately, Madgwick J found that the Church did not have a valid reason to dismiss Ms Hozack based on the operational requirements of Ms Hozack’s role, and as such Ms Hozack was awarded some compensation for her loss.